NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5953-13T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, June 22, 2015
v. APPELLATE DIVISION
DATRELL T. WILLIAMS,
Defendant-Respondent.
________________________________________________________________
Argued March 23, 2015 – Decided June 22, 2015
Before Judges Lihotz, Espinosa and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 13-07-0671.
Gretchen A. Pickering, Assistant Prosecutor, argued the cause for appellant (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief).
Peter T. Blum, Assistant Deputy Public Defender, attorney for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
After concluding that a prosecution was not barred by
either double jeopardy or the mandatory joinder rule, the trial court dismissed an indictment with prejudice against defendant,
relying upon the "doctrine of fundamental fairness and equitable
treatment." We agree with the trial court that prosecution of
the cocaine charges was not barred by double jeopardy or the
mandatory joinder rule, N.J.S.A. 2C:1-8(b) and R. 3:15-1(b).
The question presented by the State's appeal is whether, under
the facts of this case, the rarely applied doctrine of
fundamental fairness is properly relied upon to protect the
defendant from oppression and harassment. We conclude that the
application of the doctrine here was a mistaken exercise of
discretion and reverse.
I.
Although the mandatory joinder rule does not apply, a
review of its origin and application provides helpful background
for our consideration of the issue on appeal. The rule had its
origin in State v. Gregory, 66 N.J. 510 (1975). The Supreme
Court announced the adoption of a rule that would conform to
Section 1.07(2) of the American Law Institute's Model Penal
Code, which provides that "a defendant shall not be subject to
separate trials for multiple offenses based on the same conduct
or arising from the same criminal episode where the prosecuting
attorney knows of the offenses when he begins the first trial
2 A-5953-13T3 and the offenses are within the jurisdiction of the court." Id.
at 519 (internal quotation marks omitted).
In State v. Yoskowitz, 116 N.J. 679 (1989), the Court
identified the four criteria a defendant must satisfy in order
to invoke the mandatory joinder rule: "(1) the multiple offenses
are criminal; (2) the offenses are based on the same conduct or
arose from the same episode; (3) the appropriate prosecuting
officer knew of the offenses at the time the first trial
commenced; and (4) the offenses were within the jurisdiction and
venue of a single court." Id. at 701.
II.
The facts are undisputed. On August 20, 2011, defendant
was a passenger in a vehicle that was stopped in Upper Township.
After searching the vehicle, officers found a large quantity of
marijuana in the trunk. Defendant was arrested and, on April 3,
2012, was charged in Indictment No. 12-04-0238, with one count
of third-degree possession of marijuana with intent to
distribute, N.J.S.A. 2C:35-5(a)(1). In March 2013, defendant
pled guilty to this charge pursuant to a plea agreement in which
the prosecution agreed to recommend a non-custodial period of
probation. On May 3, 2013, defendant was sentenced to two
years' probation and a twelve-month suspension of his driver's
license. The probation was to run concurrent with a two-year
3 A-5953-13T3 term of probation already imposed upon defendant on another
indictment.
On May 14, 2013, just eleven days after defendant was
sentenced on Indictment No. 12-04-0238, defendant was arrested
in Upper Township on a warrant charging him with possession and
distribution of cocaine. The charges were based upon sales he
made to Detective Steve McCullen, an undercover officer employed
by the Cape May County Prosecutor's Office, of 1.85 grams of
cocaine on August 9, 2011, in Dennis Township, and 6.588 grams
of cocaine on August 19, 2011, in Upper Township. Those sales
formed the basis for two counts of third-degree distribution of
cocaine, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), charged
against him in Indictment No. 13-07-0671.
Defendant filed a motion to dismiss the indictment.
Defense counsel argued that all the charges against defendant
arose from conduct during August 2011 and that in entering his
guilty plea, defendant had a reasonable expectation he was
resolving all criminal matters against him in Cape May County.
Citing Gregory and State v. James, 194 N.J. Super. 362 (App.
Div. 1984), counsel asked the court to find the charges arose
from the same criminal episode and that the charges relating to
the undercover sales should be dismissed as a matter of
fundamental fairness.
4 A-5953-13T3 The State argued the charges in Indictment No. 13-07-0671
were wholly unrelated to the earlier charge that was the subject
of the plea agreement. Although conceding the State was charged
with knowledge of the undercover sales, the assistant prosecutor
stated the prosecutor's office was unaware of the August 2011
undercover sales when defendant was sentenced under Indictment
No. 12-04-0238, and did not have a responsibility to check for
outstanding charges. Noting "plea agreements . . . [do not]
encompass every single criminal activity that [a defendant has]
committed up until that point," the prosecutor argued it would
impose an unreasonable burden to require the State to canvas all
investigating authorities to determine whether there are any
open files against a defendant before entering into a plea
agreement. Addressing the nearly two-year delay in bringing the
charges, the prosecutor responded that the delay was not
uncommon and noted the charges were brought well within the
statute of limitations, N.J.S.A. 2C:1-6(b)(1). The prosecutor
also explained the reason for delaying the filing of charges
arising from an undercover operation:
[A]n undercover officer like Detective Mc[C]ullen . . . once they charge someone he can never be used as an undercover officer in Cape May County again. It will not happen. And so generally a year goes by.
5 A-5953-13T3 In response to a directive from the trial court, the
prosecutor's office provided a certification after the hearing
explaining the reason for the delay in charging defendant. The
certification stated the investigation was initiated in August
2011 and "remained active" until April 2013 in "an effort to
reach 2nd degree weight." The prosecutor's office had to close
the investigation after Detective McCullen resigned in April
2013 because he was the only undercover officer in contact with
defendant.
The trial judge rendered an oral decision granting
defendant's motion and dismissing Indictment No. 13-07-0671 with
prejudice. As we have noted, she did not find the prosecutor's
office acted with malice. She also determined neither double
jeopardy nor the mandatory joinder rule applied to require
dismissal of the indictment. Citing Gregory, the judge stated,
The doctrine of fundamental fairness protects a defendant from governmental harassment and oppression by multiple prosecution for the same wrongful conduct. . . . The fundamental fairness doctrine in the context of double jeopardy is based upon the reasonable expectation of the parties.
However, the judge found that Gregory was distinguishable.
She found further that defendant's case "clearly involved
different episodes."
6 A-5953-13T3 The trial judge acknowledged it was not feasible for the
prosecutor's office "to stop and canvass every single file that
the prosecutor has to determine whether" there are open cases
against a defendant before entering into a plea agreement. She
further accepted the legitimate objective of the prosecution to
keep the undercover investigation open to accumulate sales to
reach a weight that would result in a more serious charge
against defendant. She added,
But when a Prosecutor's Office does that and within its own office has another case going on involving the same defendant, it is this [c]ourt's belief that it should be the responsibility of someone in that Prosecutor's Office to coordinate those events and to understand what is going on.
. . . .
[T]here's some responsibility when a defendant has already pled. . . . [A]nd perhaps it’s just a matter of having some sort of a cross-reference within the Prosecutor's Office that before they come to court and . . . accept a plea . . . or go forward on a sentencing that someone from that office should be looking back to find out if there's a possibility that there's something out there pending. . . . This [c]ourt finds it is fundamentally unfair at this point to subject [defendant] to prosecution under this indictment . . . .
III.
"[O]ur courts have long held that a dismissal of an
indictment is a draconian remedy and should not be exercised
7 A-5953-13T3 except on the clearest and plainest ground." State v. Peterkin,
226 N.J. Super. 25, 38 (App. Div.) (citations and internal
quotation marks omitted), certif. denied, 114 N.J. 295 (1988);
see also State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.),
certif. denied, 167 N.J. 635 (2001). "Dismissal is the last
resort because the public interest, the rights of victims and
the integrity of the criminal justice system are at stake."
State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004).
Even in a case in which we found an investigating officer's
"brazen misconduct" to be "wholly reprehensible," we reversed
the dismissal of seventeen indictments, stating, "we question
whether the public must pay the price by forfeiting its day in
court on otherwise properly found indictments." Peterkin,
supra, 226 N.J. Super. at 30-31. Therefore, although a motion
to dismiss an indictment is directed to the sound discretion of
the court, State v. Hogan, 144 N.J. 216, 229 (1996), "an
indictment should stand unless it is palpably defective." State
v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010) (citation
and internal quotation marks omitted).
In this case, the trial judge correctly ruled that the
compulsory joinder rule did not apply because the offenses were
neither based on the same conduct nor arose from the same
8 A-5953-13T3 episode.1 See Yoskowitz, supra, 116 N.J. at 701. The purely
legal question before us is whether the judge abused her
discretion by relying upon the doctrine of fundamental fairness
to dismiss the indictment. Review of a trial judge's legal
interpretations is de novo. State v. Grate, 220 N.J. 317, 329
(2015); Lyons, supra, 417 N.J. Super. at 258. "[I]f a trial
court's discretionary decision is based upon a misconception of
the law, a reviewing court owes that decision no particular
deference." Lyons, supra, 417 N.J. Super. at 258.
We acknowledge that "a trial court has inherent power to
fashion remedies in the interest of justice, which may include
dismissal of a[n] indictment for reasons of fundamental fairness
even in circumstances where a defendant's constitutional rights
are not implicated." Ruffin, supra, 371 N.J. Super. at 385
(citing State v. Cruz, 171 N.J. 419, 427 (2002)). However, our
review of the applicable legal principles and the record leads
us to conclude the trial judge mistakenly exercised her
discretion in dismissing the indictment as a matter of
"For the most part," the concept of fundamental fairness
"has been employed when the scope of a particular constitutional
1 Although defendant argues on appeal that the offenses "appear[] to be part of the same broad criminal episode," he has not filed a cross-appeal from this ruling.
9 A-5953-13T3 protection has not been extended to protect a defendant."
Yoskowitz, supra, 116 N.J. at 705. As the Court observed, the
doctrine "has been an 'elusive concept . . . [where] exact
boundaries are undefinable.'" Ibid. (alteration in original)
(quoting Bruce D. Greenberg, New Jersey's "Fairness and
Rightness" Doctrine, 15 Rutgers L.J. 927, 928 (1984)).
The elusive quality of the doctrine is highlighted by the
fact that the "leading" cases described in Yoskowitz as
addressing fundamental fairness in the context of a multiple
prosecution, id. at 705-07, do not, in fact, turn on an
application of the doctrine.2 A review of cases that have
considered this issue is helpful to identify factors relevant to
a determination whether multiple prosecutions not barred by
double jeopardy or the compulsory joinder rule should be barred
as a matter of "fundamental fairness."
The issue in Gregory was whether the State could pursue
separate trials against a defendant for the sale of a small
quantity of heroin as well as possession with intent to
distribute a larger quantity of heroin that had been the source
2 In addition, although the issue of fairness in a multiple prosecution situation was discussed in both State v. Williams, 172 N.J. 361 (2002), and State v. Veney, 409 N.J. Super. 368 (App. Div. 2009), the determinative question in both cases was whether the mandatory joinder rule, N.J.S.A. 2C:1-8(b) and Rule 3:15-1(b), barred the second prosecution. Williams, supra, 172 N.J. at 363; Veney, supra, 409 N.J. Super. at 372.
10 A-5953-13T3 of the quantity sold. Gregory, supra, 66 N.J. at 511-13. The
Court described the pertinent facts in Gregory as follows:
On December 27 the defendant had possession of all of the heroin in the bathroom cabinet when the undercover officer came to his apartment. The officer saw the heroin in the cabinet and purchased a small quantity in a glassine envelope which was taken therefrom. Though he then left the apartment he returned almost immediately with other officers to seize the remaining heroin. While the sale of the small quantity and the continuing possession of the larger quantity may under our case law be viewed here as separate offenses, surely the occurrences in their entirety at the defendant's apartment on December 27 involved the same conduct or the same criminal episode for purposes of procedural joinder.
[Id. at 522 (emphasis added).]
In announcing the mandatory joinder rule, the Court found
that a second trial for possession with intent to distribute was
barred because the prosecution would violate Section 1.07(2) of
the Model Penal Code. Ibid.
The Court reasoned:
The Prosecutor was fully aware of all of the pertinent circumstances before the first indictment was returned. He had broad discretionary powers and in the exercise of his discretion he could have sought indictment for (1) the sale or (2) the possession with intent to distribute, or both. He sought and obtained indictment only for the sale and not until after trial thereon was completed did he seek and obtain indictment for the possession with intent to
11 A-5953-13T3 distribute. This course was patently unfair to the defendant and was in clear conflict with the goals and terms of § 1.07(2).
[Id. at 523 (emphasis added) (citation omitted).]
The Yoskowitz Court described State v. Currie, 41 N.J. 531
(1964), as the "seminal double-jeopardy case decided on the
basis of fairness and the reasonable expectations of the
defendant. . . ." Yoskowitz, supra, 116 N.J. at 705. After a
motor vehicle stop, the defendant in Currie sped away, striking
one police officer, hitting the police car, and causing a second
officer to leap out of harm's way. Currie, supra, 41 N.J. at
533. The defendant was convicted in municipal court for
reckless driving and leaving the scene of an accident. Id. at
533-34. He was convicted over one year later of atrocious
assault and battery and, in his appeal, argued the second
prosecution "was barred under principles of double jeopardy, and
res judicata or collateral estoppel." Id. at 535.
The Court stated "the constitutional safeguard against
double jeopardy . . . justly assures that the State with its
great resources will not be permitted to harass and oppress the
individual by multiple prosecution or punishment for the same
offense." Id. at 536. However, the Court observed, "[t]he
difficulty arises in determining just when we are dealing with
the same offense within the contemplation of the safeguard."
12 A-5953-13T3 Ibid. The policies underlying the safeguard dictate that "[t]he
primary considerations should be fairness and fulfillment of
reasonable expectations in the light of the constitutional and
common law goals." Id. at 539.
The Court also discussed the practical factors relevant to
a determination as to whether a second prosecution involves
"elements of oppression or harassment" or violates the
reasonable expectations of the defendant. Id. at 543. The
Court noted that motor vehicle violations are tried
expeditiously, in a comparatively informal proceeding with a
limited evidential presentation in which the defendant faces
minor fines and jail terms. Ibid. The Court concluded, "The
elements of oppression or harassment historically aimed at by
the constitutional and common law prohibition are not
significantly involved; and permitting the second prosecution
would not violate the reasonable expectations attendant upon the
first proceeding while barring it would operate with gross
unfairness to the State." Ibid. Accordingly, the Court
rejected the defendant's claim that the second prosecution was
barred by double jeopardy, res judicata or collateral estoppel.
Id. at 545.
In State v. Tsoi, 217 N.J. Super. 290 (App. Div. 1987), we
reversed the dismissal of an indictment for third-degree theft
13 A-5953-13T3 by embezzlement based upon multiple thefts that followed the
defendant store clerk's guilty plea in municipal court to a
single theft of $85. Id. at 292-94. We stated, "We do not
consider it reasonable that [the defendant] would . . . expect
that 67 other instances of embezzlement totaling over $6,000,
and known at that time only to her, would be disposed of upon
the single plea in municipal court." Id. at 295. Applying the
principles articulated in Currie and Gregory, we held that the
elements of harassment and oppression were not present and the
second prosecution was not barred. Id. at 295, 297; see also
State v. Catanoso, 269 N.J. Super. 246, 249, 274 (App. Div.)
(holding defendant who was indicted twice for his participation
in a conspiracy to receive kickbacks had no reasonable
expectation that his trial on one "Canadian golfing junket
conspiracy would discharge his criminal responsibility for the
lengthy conspiracy . . . charged in the first indictment"),
certif. denied, 134 N.J. 563 (1993).
Both State v. Tropea, 78 N.J. 309 (1978) and State v.
Godfrey, 139 N.J. Super. 135 (App. Div.), certif. denied, 73
N.J. 40 (1976), concerned attempts to prosecute a defendant on
charges after the State failed to prove his guilt in a prior
prosecution for a related offense.
14 A-5953-13T3 In Tropea, the defendant's conviction for operating his
vehicle at forty-four miles per hour in a twenty-five mile-per-
hour zone was reversed on appeal based on the State's failure to
prove the applicable speed limit. Id. at 311. Rather than
dismissing the charges, we remanded the matter for retrial.
Ibid. After granting certification, the Supreme Court elected
not to decide whether double jeopardy applied and instead barred
the second trial on fundamental fairness grounds. Id. at 315-
16. The Court explained:
Here the failure of the State to have produced an essential element of proof, namely, the applicable speed limit, remains without satisfactory explanation. It was raised by defendant as an objection at the trial level. While a defendant subjected to multiple speeding prosecutions may very well face less embarrassment, expense and anxiety than are encountered by those faced with criminal prosecutions, nevertheless the burdens to which he is subjected are not mere trifles. Under the circumstances of this case a rerun at the trial level would result in unwarranted harassment and should be avoided if the interests of justice will not otherwise be disserved.
They will not. Here another trial would merely afford the State another opportunity to produce evidence which it failed to muster at the original proceedings.
[Id. at 316 (emphasis added).]
The defendant in Godfrey was acquitted of receiving stolen
property by the trial judge because the proofs showed that
15 A-5953-13T3 defendant had himself stolen the van in question.3 Godfrey,
supra, 139 N.J. Super. at 137. We concluded the State was
barred from subsequently prosecuting the defendant for stealing
the van and knowingly bringing the van into New Jersey, N.J.S.A.
2A:119-9.4 Godfrey, supra, 139 N.J. Super. at 138. Observing
that "the State, with knowledge of the facts, chose the wrong
statute under which to prosecute," we found such prosecution was
barred on both double jeopardy and fundamental fairness grounds
and, further, that the facts fell "squarely within Gregory."
Id. at 141.
In a case decided after Yoskowitz, a juvenile argued he
should not be prosecuted a second time on one of two counts when
the trial court had made no conclusion regarding his guilt or
innocence on the charge. State v. M.N., 267 N.J. Super. 482,
491 (App. Div. 1993). Although we found that a second
prosecution was not barred on double jeopardy grounds, we
concluded the doctrine of fundamental fairness barred re-
prosecution of that charge. Ibid. Still, we noted, "the
doctrine of fundamental fairness is to be sparingly applied."
3 N.J.S.A. 2A:139-3 provided, "Any person who receives or purchases a motor vehicle knowing it to have been stolen, is guilty of" an offense. 4 N.J.S.A. 2A:119-9 provided, "Any person who, having at any place without this state stolen property of another, . . . brings the same into this state, is guilty of" an offense.
16 A-5953-13T3 Id. at 492. "'It is appropriately applied in those rare cases
where not to do so will subject the defendant to oppression,
harassment or egregious deprivation.'" Ibid. (quoting
Yoskowitz, supra, 116 N.J. at 712 (Garibaldi, J., concurring and
dissenting)).
We reiterate that the offenses here are clearly separate
offenses not subject to the mandatory joinder rule or vulnerable
to dismissal on double jeopardy grounds. Although all the
offenses involved controlled dangerous substances and occurred
in August 2011, they concern different transactions and, indeed,
different drugs. The charge that resulted in a guilty plea
arose from a motor vehicle stop that yielded the recovery of a
quantity of marijuana. The indictment charged defendant with
discrete sales of cocaine to an undercover officer.
We then consider the factors relied upon in the caselaw to
determine whether a second prosecution that is not barred under
double jeopardy or mandatory joinder grounds should be dismissed
under the fundamental fairness doctrine. Among the factors to
be considered are: (1) the knowledge of the prosecutor regarding
offenses that are ripe for charging against a defendant; (2)
whether a second prosecution is attributable to malice, a
failure to establish guilt in a prior proceeding, or to a
legitimate prosecutorial objective; (3) whether elements of
17 A-5953-13T3 harassment or oppression are present, and (4) whether the
reasonable expectations of the defendant are defeated by a
subsequent prosecution. In assessing these factors, we consider
the facts "in a practical light." See Currie, supra, 41 N.J. at
539, 543.
In Gregory, the Court found it significant that the
prosecutor was "fully aware" of the facts underlying the two
offenses and exercised his discretion in a manner that was
"patently unfair" to the defendant. Gregory, supra, 66 N.J. at
523. Although the prosecutor here must be charged with
knowledge of the undercover sales, the record fails to show the
prosecution was motivated by malice and the trial court so
found. Moreover, the delay in bringing those charges was
attributable to legitimate prosecution objectives - the
protection of an ongoing undercover investigation and the effort
to continue the investigation until the sales amounted to a
higher degree offense. In contrast to Gregory, this was an
appropriate exercise of prosecutorial discretion. And, this is
not a case in which the second prosecution would merely serve to
give the prosecution a second bite at proving the same
underlying offense. See Tropea, supra, 78 N.J. at 316; Godfrey,
supra, 139 N.J. Super. at 141.
18 A-5953-13T3 Like Tsoi, the defendant here was engaged in continuing and
separate criminal acts. Although the prosecutor was aware of
the two undercover sales, defendant must also be charged with an
awareness of his own criminal involvement. Under these
circumstances, it was not reasonable for him to expect that his
guilty plea to a third-degree marijuana charge would shield him
from all other drug charges during a similar period of time.
See Tsoi, supra, 217 N.J. Super. at 295.
In sum, this is not one of those "rare cases" in which the
doctrine of fundamental fairness must be applied to protect a
defendant from "oppression, harassment or egregious
deprivation." Yoskowitz, supra, 116 N.J. at 712 (Garibaldi, J.,
concurring and dissenting).
Reversed.
19 A-5953-13T3